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ARMY | BCMR | CY2003 | 2003083321C070212
Original file (2003083321C070212.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 September 2003
         DOCKET NUMBER: AR2003083321

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Mr. G. E. Vandenberg Analyst


The following members, a quorum, were present:

Ms. Jennifer L. Prater Chairperson
Mr. Arthur A. Omartian Member
Mr. Patrick H. McGann, Jr. Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records

         Exhibit B - Military Personnel Records (including advisory opinion, if any)

APPLICANT REQUESTS: That her discharge be upgraded

APPLICANT STATES: In effect, she was raped while on active duty and that her problems in the service stem from that event. She states that she did not report the attack but has been receiving psychiatric care for a number of years, and has been diagnosed as suffering from a bi-polar disorder. She states that she became pregnant, had a miscarriage, became pregnant again and requested a pregnancy discharge but that she was not given a pregnancy discharge.


Her mother submits two statements on her daughter’s behalf. She states that her daughter had told her of the attack and the problems that it was causing to include her having a miscarriage.

Her husband submits two statements wherein he relates that his friend, now wife, related to him the rape incident and though he urged her to report it she was too afraid and ashamed to do so. He also reports that her command had her doing details which she should not have been given due to her pregnancy. He confirms that she has had psychiatric counseling off and on since the rape.

EVIDENCE OF RECORD : The applicant's military records show:

The applicant entered active duty on 29 November 1979.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 12 March 1980 for failure to obey a lawful order from a noncommissioned officer (NCO).

On 4 November 1980 she received NJP for failure to go to her appointed place of duty.

She received NJP a third time on 3 March 1981, for failure to obey a lawful order from a commissioned officer.

On 19 June 1981 court-martial charges were preferred against her for 11 counts of failure to go to her appointed place of duty and three counts of disobeying a lawful order. All 14 incidents occurred between 4 and 10 June 1981.

After consulting with counsel and being advised of her rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. She acknowledged she had been advised of and understood her rights under the UCMJ, that she could receive an under other than honorable conditions (UOTHC) discharge which would deprive her of many or all of her benefits as a veteran, that she could expect to experience substantial prejudice in civilian life if she received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

The discharge authority accepted her request and directed that she be discharged under other than honorable conditions.

The applicant was discharged on 22 July 1981 with an UOTHC discharge. She is shown to have had 1 year, 7 months, and 24 days of creditable service with no time lost.

In a 1986 request to the Army Discharge Review Board (ADRB), the applicant, her parents, husband, and former commanding officer submitted statements attesting that the applicant was having problems as a result of her miscarriage, and supported her request to have her discharge upgraded. The ADRB denied the request on 24 February 1987. No reference was made to any psychiatric condition during those proceedings.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 96 for failure to obey a lawful order from a commissioned officer.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant has failed to provide nor is there any evidence in the record of her having had a miscarriage or a second pregnancy. Likewise there is no evidence that she requested a pregnancy discharge or that she is suffering from a bipolar disorder.

2. However, even if the applicant had substantiated her allegations, it would not excuse her repeated misconduct.

3. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. Her service is appropriately characterized by her overall record.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JLP___ __AAO__ __PHM __ DENY APPLICATION




         Carl W. S. Chun
         Director, Army Board for Correction
         of Military Records


INDEX

CASE ID AR2003083321
SUFFIX
RECON
DATE BOARDED 20030923
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. Upgrade
2.
3.
4.
5.
6.


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